McCummings v. Anderson Theatre Co., 16851

• Decision Date: 29 March 1954
• Docket Number: No. 16851,16851
• Court: South Carolina Supreme Court
• Parties: McCUMMINGS v. ANDERSON THEATRE CO. et al.

Page 348

81 S.E.2d 348

225 S.C. 187

McCUMMINGS v. ANDERSON THEATRE CO. et al.

No. 16851.

Supreme Court of South Carolina.

March 29, 1954.

The order of Judge Baker follows:

The employer and insurance carrier have appealed from an award of the Industrial Commission granting the employee compensation for temporary total disability at the rate of $25 per week for injuries sustained by the employee, or respondent, while working for the employer on or about March 5, 1952. The only question on appeal is, what is the correct average weekly wage of the respondent for purposes of the Workmen's Compensation Act in ascertaining the compensable weekly rate.

The facts are brief and not in dispute. For approximately three years preceding his injury, the respondent worked at least one day per week for the Anderson Theatre Company as a relief projectionist and carpenter, and for such period of employment he averaged $6 per week. By trade respondent is a bricklayer, and started work at the Theatre in order to have some work to do to supplement his income when the weather would not permit bricklaying, and also to enable himself to become a moving picture machine operator. When not working with the Theatre he followed his usual trade as a bricklayer, from which work he averaged $55 to $60 per week. On March 5, 1952, he was injured when a rug on the steps in the Theatre became loose, causing him to fall down the stairs. The bricklaying trade was not in any manner connected with respondent's employment with the Anderson Theatre Company, and such work was carried along with different independent employers.

The respondent contended to the Industrial Commission his average weekly wages for benefits should be calculated on the basis of his earnings with the Theatre and the earnings which he received from his regular trade as a bricklayer, so that the maximum weekly benefits provided by the Compensation Act, to wit, $25 per week should apply. The defendants' position before the Commission is that the average weekly wage should be based solely upon the $6 per week received in the employment in which respondent was injured, so that the minimum benefits provided by the Compensation Act, to wit, $5 per week, should apply on the basis of the average weekly earnings of $6 per week. The Hearing Commissioner, affirmed by the Full Commission, held the compensation rate is to be based upon the total earnings of the respondent and consequently issued its award for $25 per week temporary total disability compensation benefits. The employer and insurance carrier have appealed to this Court.

Section 72-4 of the Code of Laws of 1952 provides the methods for ascertaining average weekly wages. It is contained therein, (1) average weekly wages shall mean the earnings of the employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of injury, divided by fifty-two; (2) but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted; (3) when the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned the wages shall be followed, provided results fair and just to both parties will be obtained; (4) where by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impracticable to compute the average weekly wages as defined, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community; and (5) 'But when for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.'

In at least two instances the General Assembly has recognized that there would be exceptional cases in which methods one through four would be unfair, that being the average weekly wage for the South Carolina State Guard and the voluntary firemen, and the General Assembly in Section 72-4 says the average weekly wage shall be deemed to be $40 per week for these classifications.

The Full Commission has calculated the average weekly wage on method number five, that is, combining the average earnings from the bricklaying trade with the $6 per week received from the Theatre. It is the position of appellants that it is the intent of the Workmen's Compensation Act to limit the provisions thereof to employers and employees engaged in employment 'in the same business' so that the Act has no reference to the earnings or employment of the employee other than in the same business. They then argued that the earnings of the respondent as a bricklayer were not earned in the same business in which he was injured, so that such earnings in his bricklaying trade should not be considered.

I am in accord with the decision of the Full Commission, and do not believe the Act, or the section of the Act under consideration, should receive the narrow interpretation as contended by appellants. Section 72-4, supra, refers in the beginning to 'the employment in which he was working at the time of the injury' and next, to the wages received by another person 'employed in the same class of employment in the same locality or community.'

It is apparent that methods one, two and three are confined to the same employment, but the field is extended in classification number four. Further extension is...